Keeping You Posted on Measure 7

By Edward H. Trompke

Measure 7 is living up to its billing as a "full employment act for lawyers." Surprisingly though, the litigation has not been brought by property owners seeking compensation, but by local government leaders and interest groups seeking to keep Measure 7 from becoming effective. Several cities, counties, mayors, and private individuals have filed suit to prevent the Secretary of State and governor's office from canvassing Oregon's votes and certifying the election on Measure 7. Measure 7 supporters have tried to intervene in the case, but the judge declined to schedule a hearing on their request before he entered a preliminary injunction, preventing the Secretary of State from counting the ballots or delivering the count to the Governor for proclamation of the result.

After ordering the preliminary injunction, the judge allowed one person to intervene, the chief petitioner of Measure 7. A trial on the merits of the case is now scheduled for February 2001.

In the meantime, two elderly, widowed landowners have petitioned the Oregon Supreme Court to order Governor Kitzhaber and the Secretary of State to canvass the votes and declare Measure 7 law, if there are enough votes to pass. Those plaintiffs complain that, given their age and health, it is unfair to wait the two years or so it will take for the other case to find its way up through the courts for a final decision. They also appear to claim that the Attorney General, whose job it is to defend the validity of Measure 7, is not doing a credible job. Indeed, they contest that the Attorney General may be subverting the case, apparently for political reasons. If those allegations prove true, the credibility of the Attorney General's office will be weakened. The Attorney General has opposed the court hearing this case. The Supreme Court has not yet responded to the second petition, and must determine whether to hear the case at all.

The speed with which the courts address these issues, and their ultimate willingness to address the substance of them is critical. A number of local governments have enacted ordinances that anticipate that Measure 7 is law and will default to these procedures for making Measure 7 claims if the courts uphold Measure 7. Most of them also provide "waiver" for local governments who elect to escape Measure 7's requirement that compensation be paid for restrictive ordinances.

The waiver provisions allow the government not to enforce the ordinance, and to allow the landowner to use the property outside the scope of the restrictive ordinance. This was designed as a way for local governments to balance their financial needs against other land use needs.

The land use watch dog group, 1000 Friends of Oregon, has filed an action in Marion County Circuit Court to invalidate all waiver provisions in local government ordinances. The grounds for this action are that Measure 7 did not contemplate repealing the land use protections, but merely provides for payment. While the action appears to be based on valid arguments, it also appears that the plaintiff is disingenuous in its assertions, because it bought a half-page in the Voter's Pamphlet stating that Measure 7 would force governments to reduce land use regulations. But that's politics, and the truth may be hard to find, but it's out there. We'll keep you posted.

This article is intended to inform the reader of general legal principles applicable to the subject area. It is not intended to provide legal advice regarding specific problems or circumstances. Readers should consult with competent counsel with regard to specific situations.

BACK TO TOP | BACK TO ARTICLE INDEX | PRINTER-FRIENDLY PAGE